B-126638, FEB. 16, 1956

B-126638: Feb 16, 1956

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UNITED STATES TREASURY DEPARTMENT: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10. THE RECORD SHOWS THAT THE EMPLOYEE WAS SUSPENDED FROM THE SERVICE ON NOVEMBER 14. AS A RESULT OF THE INVESTIGATION HE WAS REMOVED EFFECTIVE SEPTEMBER 4. SUCH ACTION WAS ADMINISTRATIVELY TAKEN. REMOVAL ACTION WAS AGAIN EFFECTED. UPON A SECOND APPEAL THE SUSPENSION ACTION ALSO WAS DETERMINED BY THE COMMISSION TO HAVE BEEN PROCEDURALLY DEFECTIVE. RETROACTIVE RESTORATION FOR THE PERIOD OF SUSPENSION WAS RECOMMENDED. ADMINISTRATIVE ACTION WAS TAKEN TO CARRY OUT THE RECOMMENDATION. ON WHICH LETTER DATE HE WAS FINALLY REMOVED FROM THE SERVICE. QUOTING THE SYLLABUS: "EMPLOYEES WHO ARE RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 ARE ENTITLED TO THE BACK PAY BENEFITS OF THE ACT OF AUGUST 24.

B-126638, FEB. 16, 1956

TO MRS. ZELMA R. KIRK, AUTHORIZED CERTIFYING OFFICER, UNITED STATES TREASURY DEPARTMENT:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1956, RC:OMA:AD:FM ZK: JLD, SUBMITTING A VOUCHER IN THE GROSS AMOUNT OF $1,744.48 TO THE ORDER OF A FORMER EMPLOYEE AND REQUESTING OUR DECISION WHETHER THE VOUCHER COVERING A PERIOD OF SUSPENSION AND A PERIOD OF REMOVAL MAY BE CERTIFIED FOR PAYMENT UNDER THE PROVISIONS OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, BASED UPON THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT THE EMPLOYEE WAS SUSPENDED FROM THE SERVICE ON NOVEMBER 14, 1952, PENDING INVESTIGATION OF CHARGES. AS A RESULT OF THE INVESTIGATION HE WAS REMOVED EFFECTIVE SEPTEMBER 4, 1953. UPON APPEAL THE CIVIL SERVICE COMMISSION UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT, 5 U.S.C. 863, FOUND THE REMOVAL ACTION PROCEDURALLY DEFECTIVE AND RECOMMENDED RETROACTIVE RESTORATION TO SEPTEMBER 4, 1953. SUCH ACTION WAS ADMINISTRATIVELY TAKEN. ON JULY 15, 1954, REMOVAL ACTION WAS AGAIN EFFECTED. UPON A SECOND APPEAL THE SUSPENSION ACTION ALSO WAS DETERMINED BY THE COMMISSION TO HAVE BEEN PROCEDURALLY DEFECTIVE. RETROACTIVE RESTORATION FOR THE PERIOD OF SUSPENSION WAS RECOMMENDED, AND ADMINISTRATIVE ACTION WAS TAKEN TO CARRY OUT THE RECOMMENDATION. THE RECORD INDICATES THAT THE FORMER EMPLOYEE REQUESTED LEAVE WITHOUT PAY FOR THE PERIOD JUNE 14 TO JULY 15, 1954, ON WHICH LETTER DATE HE WAS FINALLY REMOVED FROM THE SERVICE.

IN OUR DECISION OF MAY 4, 1955, B-121568 (34 COMP. GEN. 568), WE HELD AS FOLLOWS, QUOTING THE SYLLABUS:

"EMPLOYEES WHO ARE RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944 ARE ENTITLED TO THE BACK PAY BENEFITS OF THE ACT OF AUGUST 24, 1912, AS AMENDED, FOR THE PERIODS OF UNJUSTIFIED OR UNWARRANTED REMOVALS. 29 C.G., 209; 32 ID. 210, 356, OVERRULED.'

SINCE THE PERIODS OF SUSPENSION AND REMOVAL HERE INVOLVED WERE FOUND PROCEDURALLY DEFECTIVE AND RETROACTIVE ADMINISTRATIVE ACTIONS RESTORING THE EMPLOYEE HAVE BEEN EFFECTED, BACK PAY FOR SUCH PERIODS IS AUTHORIZED UNDER THE FOREGOING STATUTORY PROVISION BASED UPON THE RULE IN 34 COMP. GEN. 568, ABOVE.

THEREFORE, SINCE THE NET AMOUNT OF THE VOUCHER HAS BEEN COMPUTED TO COVER THE PERIOD OF THE SUSPENSION, NOVEMBER 14, 1952, TO SEPTEMBER 3, 1953, AND THE PERIOD OF REMOVAL, SEPTEMBER 4, 1953, TO JUNE 13, 1954, AFTER WHICH DATE THE EMPLOYEE APPARENTLY WAS PLACED ON LEAVE WITHOUT PAY AT HIS OWN REQUEST UNTIL JULY 15, 1954, WHEN HE WAS FINALLY SEPARATED, LESS THE AMOUNT HE EARNED DURING THE ABOVE PERIODS FROM OTHER EMPLOYMENT, AND LESS THE AMOUNT OF RETIREMENT AND TAX DEDUCTIONS, IT MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.